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Oliver Bussell

Partner - Sevenoaks and Ashford

4th December 2018

Planning: when is enforcement not enforcement?

“When it’s unlawful”, is the simple answer to that odd-sounding question. Ok, it’s not a difficult riddle to invent but the story behind it is one of the oddest I have come across in 13 years of doing this job.

My client was midway building out his development, and engaged in arguments with the local planning authority over some conditions precedent on implementation. Only one of these was a substantial issue and even this was basically agreed. Obviously, client was on the back foot having implemented without getting formal sign-off, but that was regarded by him as a technical matter.

And then a temporary stop notice (TSN) was served.

A TSN is effective immediately and for up to 28 days. It can prevent a owner or occupier of land from doing pretty much anything in terms of use and development of land (except to deprive somebody of their home). In this case it brought an end to all works on the site for 28 days. Construction halted. Cranes sat lifeless. Men hung around, idle. Probably some tumbleweed blew across the site.

On the facts the service of the notice struck me as totally disproportionate in the circumstances. So I started examining its legal basis.

A local planning authority has a wide discretion in issuing notices but they do need to have a sound lawful basis to be effective. Without that they are not notices at all but legal misrepresentations – legal voids. For any notice to be lawful it has to adhere to the constitution of the body who has authorised it. In the same way that a company has to execute by way of director/secretary signature, any act of a local planning authority will only be lawful if it follows the requirements of that council’s constitution. In this case, the constitution said that the head of planning had to serve the notice. We were in luck, because the head of legal had done so. There was no authority (or ‘delegation’ in council speak) extending the power to the head of legal. So a certain amount of correspondence persuaded the authority involved to withdraw the notice, preserving its dignity by refusing to concede that the notice had been issued incorrectly. Construction works returned after only a two week delay instead of four.

Looking back, the lesson for the client was that despite a normal–enough aversion to ticking boxes and getting forms signed, staying on the right side of the local planning authority is a necessary business. We tend to think that statutory authorities have right on their side in most of what they do and perhaps that is implied by their name – the health authority, the water authority, the planning authority. But that is not always the case, as the ever-present body of public law cases shows. Authorities sometimes get it wrong. Landowners should all be aware of that and should be willing to challenge them when appropriate as well because they exercise considerable power over us.

It is always worth examining the legal basis of what is being put to you by a planning authority because if the legal process is flawed the ability to take enforcement could be also. That can shift the balance of power in your favour.

For more information on planning law and regulation contact Olive Bussell e: oliverbussell@rixandkay.co.uk

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